Cole v Wenaline Pty Limited

Cole v Wenaline Pty Limited - [2010] NSWSC 78 - NSWSC 2009 case summary — Zoe

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JUDGMENT 1 HER HONOUR: By amended summons filed in July 2009, the plaintiff Mr Cole seeks orders under s 69 of the Supreme Court Act 1970 quashing a decision given on 19 February 2009 by a Workers Compensation Commission Appeal Panel on the ground of judicial error on the face of the record. 2 Mr Cole was injured in October 2005 while he was manoeuvring a 44 gallon drum of oil and fuel. Liability was accepted for his injury and workers compensation payments and medical expenses have been paid. Mr Cole had worked as a farm labourer for the defendant for some 6 years prior to the injury. In February 2008, Mr Cole had a lumbo-sacral disectomy. He claimed permanent impairment, pain and suffering and an assessment of his whole of person impairment under s 66 of the Workers Compensation Act 1987. 3 Mr Cole was assessed as having an 11% whole person injury as the result of the back injury. That assessment had regard to guidelines published by the WorkCover Authority under s 322(1) of the Workplace Injury Management and Workers Compensation Act 1998, which required in [4.1] that assessment of the spine be conducted using 'diagnosis related estimates (DREs)' dealt with in Chapter 15 of the American Medical Association Guides to the Evaluation of Permanent Impairment 5 ('AMA5'), subject to certain modifications specified later in the guidelines. In [4.33] of the guideline such an adjustment was made in relation to the effects of surgery, in respect of which a separate table was provided - table 4.2. There was no controversy as to that aspect of the assessment which was made in accordance with this table. 4 On appeal the impairment was re-assessed by Dr Murray Hyde Page, an approved medical specialist, as 16%, comprising a DRE lumbar category III assessment of 10%, to which was added 3% for the activities of daily living and 3% for surgery persistence of symptoms. This assessment was then reduced by half, because of a 'pre-existing injury, condition or abnormality', the plaintiff having suffered an injury in 1976 for which he had undergone surgery. An appeal from that decision was referred to an Appeal Panel, which dismissed the appeal by majority, the Arbitral member of the Panel dissenting. 5 This appeal was advanced on three grounds:

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6 The defendant's case was that the Court's jurisdiction on appeal depended on the existence of an error of law on the face of the record. The grounds of appeal either raised questions of fact or mixed questions of fact and law. A review of the merits was not available in these proceedings. 7 It was argued in written submissions that s 328(6) of the Workplace Injury Management and Workers Compensation Act provided that the decision of a majority of the members of an Appeal Panel is the decision of the Panel. Reasons for decision were given by the majority and by the dissenting Arbitral member. The authorities referred to in the dissenting Arbitral member's decision were not raised by the plaintiff and were not relevant to the concept of a deductible proportion for pre-existing impairment or incapacity, provided for under s 323 of the Workplace Injury Management and Workers Compensation Act. 8 The medical assessment of the medical members of the Appeal Panel was undertaken in light of their clinical experience, training and professional judgment, which was not shared by the Arbitral member of the panel. In matters of medical assessment their opinions ought to take precedence, even if s 328(6) of the Act did not produce that result. The difference between the members of the Panel turned on a factual issue over which reasonable minds might differ, but gave rise to no error of law available to be reviewed under s 69(3) of the Supreme Court Act. 9 The assessment of the majority accorded with the evidence as to Mr Cole's previous injury in 1976, surgery then undertaken to his spine and the residual impairment which resulted, even though he had a good result from that surgery. Such an injury would automatically result in a 10% whole person injury assessment in accordance with AMA 5. The 2005 injury caused damage to the same area, which required further surgery, with symptoms not fully resolved. The majority's assessment of whole person injuries accorded with DRE Category III. 10 The concept of 'taking your victim as you find him,' referred to by the dissenting Arbitral member, was not relevant to an assessment of a deductible proportion for pre-existing impairment or incapacity under s 323 of the Workplace Injury Management Act. The Panel could have deducted 10% from 16% to arrive at a final result of 6%, but by application of clinical experience concluded that the result should be 8% of whole person impairment and thus dismissed the appeal. The conclusion that the prior injury did not result in any prior impairment was not open on the evidence.

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The legislation 11 The issue lying between the parties turned on s 323 of the Workplace Injury Management and Workers Compensation Act, which provides: 323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The Work Cover Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) (Repealed) 12 The construction of this provision does not appear to have been the subject of judicial consideration, but predecessor legislation has been. While s 323 of the Workplace Injury Management and Workers Compensation Act now focuses on 'a deduction for any proportion of the impairment that is due to any previous injury', s 68A of the Workers Compensation Act 1987 focussed on 'a deduction for any proportion of the loss that is due to any previous injury', in assessing respectively, 'the degree of permanent impairment' in the former and the 'the compensation payable' in the latter. Both sections, nevertheless, concerned themselves with assessing the contribution of former injury, or causation, to the consequences of later injury. Section 68A provided:

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Was error shown? 25 The defendant's case was that while it was accepted that s 323 contained an element of causation, the test was controlled by s 323(3). This required an assessment of medical evidence to determine whether any proportion of the plaintiff's impairment was due to his previous injury. Such an assessment did not involve the determination of any legal question. The majority of the Appeal Panel had assessed the evidence and had concluded that 50% of the impairment was due to the previous injury. It followed that any error involved in the majority assessment is an error of fact, not law. 26 There is no question that in so far as the Appeal Panel may have mistaken the evidence in arriving at its assessment that the prior injury resulted in a 50% contribution to the impairment which the plaintiff was suffering, that was an error of fact not amenable to review in these proceedings. It is only if it can be shown that there was an error of law involved in its approach to the resolution of the matter which fell to be decided, namely whether any proportion of the plaintiff's impairment was due to his previous injury, pre-existing condition or abnormality that the relief sought may be granted. 27 In my view such an error was made. 28 It is apparent from the way in which the majority reasoned to its conclusion, that it proceeded on the basis of an assumption. The assumption was that even though the treatment of the first injury to the plaintiff's spine in 1976 had succeeded, with the results to which the dissenting member of the panel referred, the very fact of the existence of that prior injury, 'irrespective of outcome', resulted in an impairment which must have contributed to the impairment which arose after the second injury. As the majority explained, it was of the view, 'hypothetically', that if the plaintiff had been examined before the second injury, given his history, he would have been assessed as suffering from a 10% of whole person impairment, under AMA 5. 29 As the plaintiff argued, to so approach the exercise required to be undertaken by s 323, was to fall into an error of law. The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment. 30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, 'irrespective of outcome', contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction 'will be difficult or costly to determine (because, for example, of the absence of medical evidence)'. In that case, an assumption is provided for, namely that the deduction 'is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence. 31 The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine. Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case. An assumption of the kind here made, namely that surgery to the lumber spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury. 32 That view of the section accords with the provision made in the guidelines established under s 322, which adopt the AMA 5 Guide. Paragraph [1.6b] Apportionment Analysis of the Guide provides:

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There is evidence indicating the prior factor caused or contributed to the impairment, based on a reasonable probability (<50% likelihood). The apportionment analysis must consider the nature of the impairment and its possible relationship to each alleged factor, and it must provide an explanation of the medical basis for all conclusions and opinions. Most states have their own customized methods for calculating apportionment. Generally, the most recent permanent impairment rating is calculated, and then the prior impairment rating is calculated and deducted. The remaining impairment rating would be attributed or apportioned to the current injury or condition. 33 This statutory scheme adopts a similar approach. It does not provide that the mere existence of a previous injury, even to the same body part, as was the case here, automatically results in a deduction under s 323. Before a deduction may be made, consideration must be given to the evidence as to whether or not the earlier injury in fact contributed to the permanent impairment identified after the later injury. It was argued for the defendant that the majority's reasons showed that it had not proceeded by rote. They were medical specialists who agreed with the conclusion reached by the specialist appealed from, that there was a previous impairment which had contributed to the impairment identified as existing after the second injury. They had not misunderstood the section, but had applied it. 34 I am unable to accept the defendant's submission that the majority of the Appeal Panel understood and applied the section to the evidence in this way. Section 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment assessed resulted from an earlier injury, pre-existing condition or abnormality. In a case such as this, that conclusion must be reached on the evidence led as to the actual consequences of the earlier and later injuries, unless the assumption provided in s 323(2) applies. 35 In Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 374, it was said: 121 Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

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36 In this case the difficulty, it seems to me, is that the majority proceeded on the basis of an assumption as to what will be the situation in every case where an earlier injury to the spine has occurred, 'irrespective of outcome'; rather than focussing on the evidence of what the outcome in fact was, after the earlier injury and determining how that contributed to the impairment present after the second injury. That required an assessment of the evidence to which the dissenting member made reference. That assessment was not undertaken. 37 The evidence suggested that the degree of impairment before and after the second injury was quite different. Why the degree of impairment present after the second injury was found to be due to the previous injury was not explained, other than by reference to the assumption which the majority made. 38 What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section. 39 There was a further difficulty with the majority's approach. They accepted the assessment of the plaintiff's impairment after the second injury of 16%, including a 10% impairment for being in DRE category III. To that 10% was added 3% for the activities of daily living and 3% for surgery persisting symptoms. The consequence of the majority's adoption of the assumption it referred to, was an assessment of whole of back impairment following the 1976 injury of 10%, according to AMA 5. That appears to reflect a view that there was no difference in that aspect of the plaintiff's whole of body impairment, it was 10% both before and after the second injury. Notwithstanding this, the majority also accepted that the assessment of 50% contribution of the prior injury to the current impairment was correct, leaving a final outcome of 8%. How this could follow as a matter of logic, is not apparent. 40 What is apparent from the decision is that the majority conducted its assessment on a basis inconsistent with what s 323 required. The appeal must, accordingly be upheld, with an order as to costs, other than those for the costs thrown away when the matter could not proceed when originally listed for hearing, as the result of the plaintiff's counsel's difficulty.

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